from the gotta-be-a-better-way dept

I think most people agree that bots that drive up viewer/follower counts on various social media systems are certainly a nuisance, but are they illegal? Amazon-owned Twitch has decided to find out. On Friday, the company filed a lawsuit against seven individuals/organizations that are in the business of selling bots. There have been similar lawsuits in the past -- such as Blizzard frequently using copyright to go after cheater bots. Or even, potentially, Yelp suing people for posting fake reviews. When we wrote about the Yelp case, we noted that we were glad the company didn't decide to try a CFAA claim, and even were somewhat concerned about the claims that it did use: including breach of contract and unfair competition.

Unfortunately, Twitch's lawsuit uses not just those claims, but also throws in two very questionable claims: a CFAA claim and a trademark claim. I understand why Twitch's lawyers at Perkins Coie put that in, because that's what you do as a lawyer: put every claim you can think of into the lawsuit. But it's still concerning. The CFAA, of course, is the Computer Fraud and Abuse Act, which was put in place in the 1980s in response to the movie War Games (no, really!) and is supposed to be used to punish "hackers" who break into secure computer systems. However, over the years, various individuals, governments and companies have repeatedly tried to stretch that definition to include merely breaching a terms of service. And that appears to be the case here with Twitch:

To provide their services and with the goal of defrauding Twitch’s users,
Defendants knowingly and intentionally used bot software that accessed Twitch’s protected
computers without authorization or in excess of the authorization granted to them by the Terms.
Also without authorization or in excess thereof, Defendants willfully, and with the intent to
defraud, accessed Twitch’s protected computers by means of that fraud, and intended to and did
use Twitch’s protected computers. For example, Defendants represent that they can access
Twitch’s protected computers and circumvent Twitch’s security measures in order to provide
their bot services without being detected by Twitch.

Except, it's a pretty big stretch to argue that bots accessing your open website that anyone can visit requires some kind of specific "authorization." Yes, cheating bots are annoying. And yes, they can be seen as a problem. But that doesn't mean that Twitch should be trying to expand the definition of the CFAA to include accessing an open website in a way the site doesn't like. As a company, Twitch has been on the right sides of lots of important tech and policy issues. It was vocal in the SOPA fight. It even sponsored us here at Techdirt for our net neutrality coverage. It's generally viewed as a pretty good internet citizen.

So it's especially disappointing that the company has chosen to come down on the wrong side of another really important tech policy issue: abuse of the CFAA.

The trademark claim is also somewhat troubling, though not as much. But it's also a huge stretch:

As described above for each Defendant, Defendants use the TWITCH mark in
domain names and on their websites in connection with the provision of bot services.
Defendants’ use of the TWITCH mark in commerce constitutes a reproduction, counterfeit, copy,
or colorable imitation of a registered mark for which the use, sale, offering for sale, and
advertising of their bot services is likely to cause confusion or mistake or lead to deception.

No one is visiting the sites of these bot makers and assuming that they're endorsed by Twitch. I mean, they're all pretty clear that their entire purpose is to inflate viewers/followers on Twitch, which is clearly something that Twitch is against. As we've noted over and over again, having a trademark does not mean that you get to block any and all uses of that word. Using a company's trademarked name in a way that refers to that company is generally seen as nominitive fair use (basically using the trademark in a descriptive manner, rather than as a way of deceiving people into thinking that there's an endorsement).

There's a similar "anti-cybersquatting" claim in there as well, but that's basically just a repeat of the trademark claim, "for the domain name," so the same thing applies.

Twitch doesn't need to use either of these claims, and it's disappointing that they and their lawyers have chosen to do so. This is not to say that bots and fake followers are okay. But these kinds of cases can set really bad precedents when a company like Twitch decides to overclaim things in a way that harms the wider tech and internet industry. I'm not even sold on the need to litigate these kinds of issues at all, prefering to think that a tech-based approach should be good enough. To be sure, Twitch notes that it's still mostly focused on technological and social moderation methods for stopping bots, but has decided to go the lawsuit path as a "third layer" of attack against bots.

Even if it felt it needed to go down that path, it really should have thought more carefully about bringing claims under the CFAA and trademark law. One hopes that the company will reconsider and perhaps drop those claims, even if it wants to pursue other claims, such as breach of contract.

from the not-how-to-do-it dept

As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch* (read disclosure below!) has announced that it has turned on Audible Magic to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains:

We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted.

The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted.

This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos on that site.

Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often does make sense in a YouTube world (though it has way too many false positives).

However, when it comes to Twitch, this kind of solution seems to make no sense at all. People are not going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive for just about everyone. These days musicians want their music in video games because it's fantastic for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games because it's such an important promotional avenue.

A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters is transformative fair use, or that a book of concert posters is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose.

And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing.

Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required.

But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all.

In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone.

From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers?

Copyright remains totally broken.

* Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone.

from the step-on-up dept

As we recently explained, the type of reporting we do isn't always conducive to advertising support -- in fact, our work on the SOPA fight caused us to lose a significant amount of revenue, and the blog itself operates at a loss. Earlier this month we announced that we were running a crowdfunding campaign on BeaconReader to fund our net neutrality coverage in particular -- as that's another subject that deserves deep-dive coverage, and which traditional advertisers don't want to go anywhere near. One of the great things about working with BeaconReader was that they were able to line up matching funds, so that every donation to us is automatically doubled by the matching donors. Today we're happy to announce that the first two matching donors have been revealed as Twitch and Namecheap -- two companies that are dedicated to preserving an open and free internet, and who wanted to support our coverage in this way, by multiplying the impact of anyone who donates. We're also announcing that Reddit founder Alexis Ohanian has backed our project as an "Event Sponsor," for a net neutrality salon that we'll be holding later this year.

We're excited to have this support, and just as excited to see so many of you step up to back the project as well. We're about a week away and there's still a long way to go, but the initial support has been fantastic. If you enjoy what we do, and would like to see it continue (and go deeper and be more involved), please consider backing the project in the next week and thank Twitch and Namecheap for immediately doubling the impact of your support. If we succeed, we'll be able to devote more time and resources to our net neutrality reporting, including bringing in additional voices, meeting with key players, and just generally spending more time digging into the details of this important topic -- rather than having to spend it convincing advertisers that, no, we don't want to force a giant annoying video to play on the site before you can read anything, because that's not how we treat our community. It's great that Twitch and NameCheap were willing to step up via BeaconReader, to show their commitment to dedicated, independent reporting on these important topics.